Experts & Views

Consensual sex by a grown lady is not an act induced by misconception

The High Court of Delhi, by way of judgement delivered on May 24, 2016, in the case of Rohit Tiwari v. State has held that if a grown woman engages in an act of sexual intercourse, whilst giving her consent, on a promise to marry and continues to engage in such an activity for a considerable amount of time, it cannot be said that such a woman has been induced to participate in such an act due to misconception of a fact and that the act stems from promiscuity of such a woman herself. The High Court, while setting aside the order of the Additional Sessions Judge, acquitted the accused.

The Additional Sessions Judge, in Sessions Case No. 36/15, had convicted the appellant for committing an offence as stipulated under Section 375 of the Indian Penal Code (‘IPC’) and was sentenced, in accordance with Section 376 of IPC, to rigorous imprisonment of ten years along with a fine of Rs. 1.5 Lakhs. Aggrieved by this, the accused preferred an appeal to the High Court of Delhi.

It was deposed by the prosecutrix that she had been living away from her husband since the last 17 years. She came to know the accused when she went to his godown to buy some household goods as they were being sold at a cheap price. She started buying goods from his godown regularly and became friends with accused and the accused started visiting her house. It was deposed by her that the accused told her that he was unwed and resides alone at his maternal aunt’s house in Delhi. The accused took her to his residence where she was introduced to his maternal aunt and sister in law. They suggested her that she should get married to the accused. She told them that she was already married wherein the aunt asked her to seek divorce from her husband. On the same day, they paid visit to Mehandipur Balaji and spent the night in Shiv Dham Ashram wherein the accused and the prosecutrix engaged in sexual activities. On 10.06.2013, they paid a visit to Mahakaleshwar Temple, Ujjain. After returning, she filed a petition for mutual divorce from her husband. Meanwhile, they continued engaging in sexual intercourse. On 01.11.2013 she came to know about the accused’s marriage when she visited his native village. In cross examination, it was admitted by the prosecutrix that they had engaged in sexual intercourse two times before the marriage proposal was advanced to her.

After carefully hearing both sides, it was observed by the Court that no cogent evidence has emerged on record to show that the physical relations were established with the prosecutirx on the false promise or assurance of marriage and that she was mature enough to fully understand as to what was happening between the two and that there was nothing in her evidence which could demonstrate that she was incapable of understanding the nature and implications of the acts which she consented to.

Further, it was observed by the Court that, if a fully-grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact. It was also observed by the Court that physical relations between the two were consensual and that it could not be inferred with certainty that the prosecutrix was cheated and her consent was obtained for physical relationship on the false promise to marry.

Further, it was observed by the Court that there was no explanation with regards to the inordinate delay in lodging the FIR as relationship between the two started in 2012 but FIR has been lodged only on 09.03.2014 and that as per her medical evidence, MLC Ex.PW5/A, no fresh external injury was found on her body. Moreover, it was observed by the Court that the conviction could be based upon the sole testimony of the prosecutrix provided it is reliable and is of sterling quality.

The Court referred to the case of Sujit Ranjan v. State1 wherein it was held by the Court that, “legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under "misconception of fact". Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion.”2

Thereafter, the Court referred to the case of Deepak Gulati v. State of Haryana3 wherein the Court held that, “consent may be express or implied, coerced or misguided, obtained willingly or through deceit held it Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at any early stage, a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence.”4

Further, the Court referred to the case of Uday v. State of Karnataka5 wherein it was held by the Court that, “in the ultimate analysis, the tests laid done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact.”6

Further, the Court referred to the case of Abbas Ahmed Choudhury v. State of Assam7 wherein it was held by the Court that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully.

Thereafter, the Court referred to the case of Raju v. State of Madhya Pardesh8 wherein it was held by the Court that the testimony of a victim of rape has to be tested as if she is an injured witness but cannot be presumed to be a gospel truth.

Further, the Court referred to the case of Rai Sandeep @ Deepu v. State of NCT of Delhi9 wherein it was held by the Court that, “in our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness.”10

Moreover, the Court referred to the case of Tameezuddin @ Tammu v. State (NCT of Delhi)11 wherein it was held by the Court that, “It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.”12

Therefore, it was held by the Court that, in absence of testimony which could inspire confidence and circumstantial evidence, the accused is to be acquitted and that the learned trial court Judge had erred in his decision. The Court set aside the judgment of the Additional Sessions Judge and allowed the appeal.

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